New York does not let an employer treat a criminal conviction as an automatic disqualifier. Article 23-A of the New York Correction Law sets out a structured test that public agencies, licensing boards, and private employers across the state must apply before denying a job or a license because of someone’s conviction history. New York City then layers its own Fair Chance Act on top of that state framework, with its own notice, timing, and documentation requirements. Getting this sequence wrong is not a paperwork technicality. A violation of Article 23-A is itself an unlawful discriminatory practice under the New York Human Rights Law, which means it can turn into a state complaint or a lawsuit, not just a hiring headache.
This guide walks through what Article 23-A actually requires, the eight factors employers have to weigh, how certificates of relief and good conduct change the analysis, how Executive Law 296 makes the statute enforceable, and how the NYC Fair Chance Act adds its own process for employers operating in the five boroughs.
What Article 23-A covers
Article 23-A applies to any public agency or private employer in New York State considering an application for a license or for employment from a person who has one or more prior criminal convictions. The core rule, found in Correction Law Section 752, is that an employer or licensing agency may not deny the license or the job based on a conviction unless one of two things is true: there is a direct relationship between the criminal offense and the specific license or job being sought, or granting the license or job would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Absent one of those two findings, the statute treats a flat denial based on conviction history as unfair discrimination.
The law applies whenever a public agency or private employer in New York weighs someone’s prior conviction record for a licensing or employment decision, whether that information came from a consumer report, a direct admission, or a public record, not only when a third party background check surfaces a hit.
The eight factors an employer must actually weigh
Correction Law Section 753 spells out what “direct relationship” and “unreasonable risk” mean in practice by listing the factors a public agency or private employer must consider. These are commonly referred to as the Article 23-A factors, and New York City’s own Fair Chance Act guidance confirms this same eight factor list applies to pre-employment conviction history.
| Factor | What it asks |
|---|---|
| Public policy | New York’s stated policy to encourage the licensing and employment of people with prior convictions |
| Job duties | The specific duties and responsibilities that come with the job or license |
| Bearing on fitness | Whether the offense has any bearing on the person’s fitness or ability to perform those duties |
| Time elapsed | How much time has passed since the offense occurred |
| Age at the time | How old the person was when the offense occurred |
| Seriousness | How serious the offense actually was |
| Rehabilitation evidence | Any information the person or someone on their behalf offers about rehabilitation and good conduct |
| Legitimate business interest | The employer’s legitimate interest in protecting property, and the safety and welfare of specific people or the public |
These factors are meant to be weighed together, not treated as a checklist where one bad answer ends the analysis. A conviction that is old, minor, and unrelated to the job duties should carry different weight than a recent conviction connected to the position. Employers should document how they weighed each factor, since a bare denial with no analysis is exactly what Article 23-A was written to prevent.
Certificates of relief and good conduct shift the burden
Beyond the eight factors, Section 753 also provides that if the applicant holds a certificate of relief from disabilities or a certificate of good conduct, that certificate creates a presumption of rehabilitation for the conviction it covers. A certificate of relief from disabilities is generally issued by a criminal court and typically applies to a single felony conviction or one or more misdemeanor convictions. A certificate of good conduct is issued through the state’s correctional system for people with multiple felony convictions and generally requires a longer waiting period and a demonstrated record of good conduct. New York’s Department of Corrections and Community Supervision publishes the application used to seek a certificate of relief from disabilities, and an employer that sees one should treat it as evidence weighing toward rehabilitation rather than disregard it. A presumption of rehabilitation is not a promise of hiring; an employer can still find a direct relationship or unreasonable risk in an individual case, but it has to explain why the presumption was overcome rather than simply ignoring the certificate.
Executive Law 296 is what makes this enforceable
Article 23-A sets the standard. Executive Law Section 296 is what turns a violation of that standard into something an applicant can act on. Section 296(15) makes it an unlawful discriminatory practice for a public agency or private employer to deny a license or employment in violation of Article 23-A. Section 296(16) separately makes it unlawful, with narrow exceptions, to ask about or take action based on certain arrests and accusations that did not result in a conviction, including cases resolved in the person’s favor, matters resolved as a youthful offender adjudication, and records that have been sealed. Together, these two provisions mean that a New York employer faces the same kind of exposure for a bad Article 23-A decision that it would face for other forms of unlawful discrimination, through a complaint to the state Division of Human Rights or through court. New York’s Division of Human Rights administers the state Human Rights Law under Article 15 of the Executive Law and is the agency that receives these complaints.
Section 754 adds a procedural piece: an applicant denied a license or job based on conviction history generally has the right to request a written statement of the reasons, and the agency or employer has to provide it. Employers should be ready to produce that explanation, since an inability to explain the decision after the fact is difficult to defend if a complaint follows.
New York City adds the Fair Chance Act on top of state law
Employers operating in New York City are also subject to the NYC Human Rights Law’s Fair Chance Act, enforced by the NYC Commission on Human Rights. The Fair Chance Act generally prohibits an employer from asking about or investigating criminal history until after a conditional offer of employment has been made. A conditional offer can only be revoked based on the results of a criminal background check, a permitted medical exam, or other information the employer could not reasonably have known before the offer.
Once a conditional offer has been extended and the employer is considering withdrawing it, denying a promotion, or taking another adverse action based on conviction history, it must follow what the Commission calls the Fair Chance Process. That means completing a written Fair Chance Analysis using the same eight Article 23-A factors described above, giving the applicant a written copy of both the inquiry into their criminal history and the completed analysis, and allowing a reasonable period of at least five business days from receipt for the applicant to respond before finalizing the decision. For pending arrests or criminal accusations, and for conduct that arises during employment rather than before hire, the Commission’s guidance applies a related but separately defined set of NYC Fair Chance Factors rather than the Article 23-A factors, so employers need to know which factor list applies to the situation in front of them.
How this fits with the federal background check rules
Article 23-A and the Fair Chance Act govern the substance of the decision, meaning whether and how conviction history can be used. They sit alongside, not instead of, the federal Fair Credit Reporting Act rules that apply whenever a third party consumer report is used, including the standalone disclosure and authorization before ordering a report and the pre-adverse and adverse action notices with a copy of the report and a summary of rights. The Federal Trade Commission’s guidance for employers lays out that sequence, and our own walkthrough of the FCRA adverse action process covers the notice and waiting period steps in order. The Equal Employment Opportunity Commission’s guidance on arrest and conviction records describes a similar individualized, job related approach under Title VII, a useful comparison even though it is a separate standard from Article 23-A.
None of this means a background check will or will not surface a particular record. What appears depends on the sources searched and the type of check ordered, and New York’s own sealing and non-conviction rules mean some records an applicant discloses will not show up on a standard criminal history search. Employers should not represent to a candidate that a report is certain to reveal, or certain to hide, any specific record.
A practical process for New York employers
In practice, a defensible New York process looks like this. Do not ask about conviction history on the application. Extend a conditional offer before requesting a criminal history check, if operating in New York City. Obtain the FCRA disclosure and authorization before ordering any consumer report. If the report or an admission surfaces a conviction, run the Article 23-A analysis against all eight factors, check for a certificate of relief or good conduct, and write down the reasoning. If a New York City employer is considering an adverse action, prepare the Fair Chance Notice, give the applicant the inquiry and analysis in writing, and hold the position open at least five business days for a response before finalizing anything.
Employers that also operate outside New York should not assume this same eight factor structure applies elsewhere. Ban the box and fair chance laws vary widely from state to state in what they require and when, and our broader guide to ban the box and fair chance hiring laws covers how other jurisdictions differ from New York’s approach.
Frequently asked questions
What is the direct relationship or unreasonable risk standard under Article 23-A?
It is the core test in Correction Law Section 752. A New York employer or licensing agency generally may not deny a job or license based on a conviction unless there is a direct relationship between the offense and the specific position, or hiring the person would create an unreasonable risk to property or to the safety and welfare of specific individuals or the public.
Are the eight Article 23-A factors a strict checklist?
They are meant to be weighed together rather than applied as a pass or fail checklist. Section 753 lists factors including the job’s duties, how much time has passed since the offense, the person’s age at the time, the seriousness of the offense, and evidence of rehabilitation, among others, and an employer’s decision should reflect a genuine weighing of all of them.
Does a certificate of relief from disabilities mean someone will be hired?
No. It creates a presumption of rehabilitation for the conviction it covers, which an employer must take into account, but it does not automatically override a genuine direct relationship or unreasonable risk finding in a specific case.
How is Article 23-A actually enforced?
Executive Law Section 296(15) makes a violation of Article 23-A an unlawful discriminatory practice, which an applicant can raise through a complaint to the New York State Division of Human Rights or through a court action, depending on the circumstances.
Does the NYC Fair Chance Act replace Article 23-A for New York City employers?
No. It adds to it. New York City employers still apply the Article 23-A eight factor analysis for pre-employment conviction history, and on top of that they must follow the NYC Fair Chance Process, including the written notice, copy of the inquiry and analysis, and the at least five business day response period before an adverse action.
Can a New York employer ask about an arrest that never led to a conviction?
Generally no, with narrow exceptions. Executive Law Section 296(16) restricts inquiries into and use of certain arrests and accusations that did not result in a conviction, including matters resolved in the person’s favor or sealed under state law, though there are limited statutory exceptions.
Sources
- NYC Commission on Human Rights, Legal Enforcement Guidance on the Fair Chance Act
- New York State Division of Human Rights, Human Rights Law
- New York Correction Law section 701, Certificate of Relief from Disabilities
- U.S. EEOC, Enforcement Guidance on Arrest and Conviction Records
- Federal Trade Commission, Using Consumer Reports: What Employers Need to Know
Related reading
- Ban the Box and Fair Chance Hiring Laws: An Employer Guide
- The FCRA Adverse Action Process: A Step by Step Guide for Employers
Building a background check process that holds up in New York takes more than a single background check step. Reveal Background works with employers to build compliant screening programs from disclosure through adverse action.
This article is general information, not legal advice. New York and New York City rules on criminal history in hiring are detailed and can change; consult employment counsel about how they apply to a specific decision.
